A-8397, APRIL 8, 1925, 4 COMP. GEN. 842

A-8397: Apr 8, 1925

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COURT-MARTIAL - FORFEITURE OF NAVY PAY AN ENLISTED MAN WHO SURRENDERED TO THE NAVAL AUTHORITIES MORE THAN THREE YEARS AFTER HIS DESERTION FROM THE NAVY AND AFTER HIS ENLISTMENT HAD EXPIRED AND WAS GIVEN AN UNDESIRABLE DISCHARGE IS NOT ENTITLED TO PAY FORFEITED PRIOR TO HIS DESERTION UNDER SENTENCES OF SUMMARY COURTS MARTIAL. WAS DISALLOWED AND A BALANCE WAS CERTIFIED TO BE DUE FROM HIM TO THE UNITED STATES. WAS ATTACHED FOR DUTY ABOARD THE U.S.S. WAS RATED BOATSWAIN'S MATE. THE RECORDS OF THE BUREAU INDICATE THAT THE ABOVE NAMED MAN WAS TRIED BY SUMMARY COURT-MARTIAL AND SENTENCED TO LOSE PAY AMOUNTING TO $273. LOSS OF PAY WAS REDUCED TO $75 AND SO REMITTED IN ACCORDANCE WITH ART. THAYER WAS AGAIN TRIED BY SUMMARY COURT-MARTIAL AND SENTENCED TO BE DISCHARGED FROM THE U.S.

A-8397, APRIL 8, 1925, 4 COMP. GEN. 842

COURT-MARTIAL - FORFEITURE OF NAVY PAY AN ENLISTED MAN WHO SURRENDERED TO THE NAVAL AUTHORITIES MORE THAN THREE YEARS AFTER HIS DESERTION FROM THE NAVY AND AFTER HIS ENLISTMENT HAD EXPIRED AND WAS GIVEN AN UNDESIRABLE DISCHARGE IS NOT ENTITLED TO PAY FORFEITED PRIOR TO HIS DESERTION UNDER SENTENCES OF SUMMARY COURTS MARTIAL. A SUMMARY COURT-MARTIAL SENTENCE IMPOSING FORFEITURE OF PAY OPERATES ONLY UPON PAY EARNED UNDER A CONTRACT OF ENLISTMENT AND A DISCHARGE ISSUED BEFORE SUFFICIENT PAY HAS BEEN EARNED TO SATISFY THE FORFEITURE WORKS A REMISSION OF THE UNEXECUTED PORTION OF THE SENTENCE.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 8, 1925:

BENJAMIN HARRISON THAYER, FORMERLY BOATSWAIN'S MATE, FIRST CLASS, UNITED STATES NAVY, HAS APPLIED FOR REVIEW OF CLAIM SETTLEMENT 043775, DATED NOVEMBER 7, 1924, WHEREIN HIS CLAIM FOR ARREARS OF PAY AT $84 PER MONTH FOR THE PERIOD NOVEMBER 1, 1920, TO JANUARY 10, 1921, WAS DISALLOWED AND A BALANCE WAS CERTIFIED TO BE DUE FROM HIM TO THE UNITED STATES.

CLAIMANT LAST ENLISTED IN THE UNITED STATES NAVY, APRIL 28, 1919, AT NEW YORK, N.Y., FOR FOUR YEARS, WAS ATTACHED FOR DUTY ABOARD THE U.S.S. TEXAS, AND WAS RATED BOATSWAIN'S MATE, FIRST CLASS, APRIL 1, 1920. THE CHIEF OF THE BUREAU OF NAVIGATION HAS REPORTED CONCERNING HIS CONDUCT AND SERVICE THEREAFTER AS FOLLOWS:

11 DECEMBER, 1924.

(1ST INDORSEMENT:)

FROM: THE CHIEF OF THE BUREAU OF NAVIGATION.

TO: THE COMPTROLLER GENERAL, GENERAL ACCOUNTING OFFICE, CLAIMS

DIVISION.

SUBJECT: THAYER, BENJAMIN HARRISON, NO. 501-70-38, BM 1C, U.S.N.

INFORMATION REGARDING COURTS-MARTIAL.

1. RETURNED. THE RECORDS OF THE BUREAU INDICATE THAT THE ABOVE NAMED MAN WAS TRIED BY SUMMARY COURT-MARTIAL AND SENTENCED TO LOSE PAY AMOUNTING TO $273. LOSS OF PAY WAS REDUCED TO $75 AND SO REMITTED IN ACCORDANCE WITH ART. I-4893, N.I., 1913, APPROVED BY CONVENING AUTHORITY 18 NOVEMBER 1920 AND BY IMMEDIATE SUPERIOR IN COMMAND ON 19 NOVEMBER 1920.

2. THAYER WAS AGAIN TRIED BY SUMMARY COURT-MARTIAL AND SENTENCED TO BE DISCHARGED FROM THE U.S. NAVAL SERVICE WITH A BAD CONDUCT DISCHARGE AND TO LOSE PAY AMOUNTING TO $268.50. BAD CONDUCT DISCHARGE REMITTED; PLACED ON SIX MONTHS' PROBATION. APPROVED BY CONVENING AUTHORITY AND SUPERIOR OFFICER PRESIDING ON 28 DECEMBER 1920. LOSS OF PAY IN THIS CASE WAS NOT REMITTED.

3. THERE IS NOTHING ON FILE IN THE BUREAU TO SHOW THAT THE ABOVE MENTIONED COURTS-MARTIAL WERE EVER REVIEWED OR DISAPPROVED.

3 OCTOBER, 1924.

(1ST INDORSEMENT)

FROM: THE CHIEF OF THE BUREAU OF NAVIGATION.

TO: THE COMPTROLLER GENERAL, GENERAL ACCOUNTING OFFICE (CLAIMS

DIVISION).

SUBJECT: THAYER, BENJAMIN HARRISON, NO. 501-70-38, BM 1C, U.S.N.

REGARDING PERIOD OF DESERTION.

1. RETURNED. THE RECORDS OF THE BUREAU INDICATE THAT THE ABOVE NAMED MAN, A DESERTER FROM THE U.S.S. RATHBURN FROM 12 JANUARY, 1921, SURRENDERED HIMSELF AT THE NAVY RECRUITING STATION, DES MOINES, IOWA, 28 MARCH, 1924. IN VIEW OF THE FACT THAT A PERIOD OF OVER TWO YEARS HAD ELAPSED SINCE THE DATE OF HIS DESERTION AND THAT HE WAS A TECHNICAL WAR- TIME DESERTER THE BUREAU DID NOT RECOMMEND TRIAL BY COURT-MARTIAL, BUT DIRECTED THAT THAYER BE DISCHARGED AS UNDESIRABLE FOR THE NAVAL SERVICE. THE MARK OF DESERTION HAS NOT BEEN REMOVED FROM HIS RECORD.

BETWEEN OCTOBER 1, 1920, AND DECEMBER 15, 1920, CLAIMANT WAS PAID $138. HE WAS NOT PAID THEREAFTER FOR THE REASON THAT THE TOTAL PAY EARNED BY HIM WAS INSUFFICIENT TO COVER THE FORFEITURE OF PAY ($268.50) IMPOSED BY THE SUMMARY COURT-MARTIAL SENTENCE APPROVED DECEMBER 28, 1920, AND THE COST OF HIS TRANSPORTATION AND SUBSISTENCE ($17.20) FROM DES MOINES, IOWA, WHERE HE SURRENDERED, TO THE NAVAL TRAINING STATION AT GREAT LAKES, ILL. SEE ARTICLES D-2132 AND D-7120, BUREAU OF NAVIGATION MANUAL, 1921. THOUGH THE LOSS OF PAY IMPOSED BY THE SUMMARY COURT-MARTIAL SENTENCE APPROVED NOVEMBER 19, 1920, WAS CONDITIONALLY REMITTED, IT BECAME AN ABSOLUTE FORFEITURE BY REASON OF CLAIMANT'S SUBSEQUENT DESERTION. IN THIS CONNECTION SEE ARTICLE 1877 (2) (F), NAVY REGULATIONS, 1920.

WHEN CLAIMANT WAS DISCHARGED APRIL 22, 1924, AT THE NAVAL TRAINING STATION, GREAT LAKES, ILL., AS UNDESIRABLE FOR THE NAVAL SERVICE, HIS ACCOUNT SHOWED AN OVERPAID BALANCE OF $208.19. THIS OVERPAID BALANCE RESULTED FROM AN ENTRY ON THE DEBIT SIDE OF THE ACCOUNT OF THE $268.50 FORFEITURE OF PAY IMPOSED BY THE SUMMARY COURT-MARTIAL SENTENCE APPROVED DECEMBER 28, 1920.

SINCE A SUMMARY COURT-MARTIAL SENTENCE IMPOSING A FORFEITURE OF PAY OPERATES ONLY UPON PAY EARNED UNDER A CONTRACT OF ENLISTMENT, A DISCHARGE ISSUED BEFORE SUFFICIENT PAY HAS BEEN EARNED TO SATISFY THE FORFEITURE WORKS A REMISSION OF THAT PORTION UNSATISFIED AT THE DATE OF DISCHARGE. SEE IN THIS CONNECTION DECISION RENDERED TO PAYMASTER T. J. ARMS IN THE TAYLOR CASE, 69 MS. COMP. DEC. 109, APRIL 6, 1914. AS HIS ENLISTMENT HAD EXPIRED WHEN HE SURRENDERED MARCH 28, 1924, HE IS NOT ENTITLED TO PAY SUBSEQUENT TO THAT DATE.

ACCORDINGLY, THE CHARGE RAISED AGAINST CLAIMANT WILL BE REMOVED BUT THE PORTION OF THE SETTLEMENT WHEREIN HIS CLAIM FOR ARREARS OF PAY WAS DISALLOWED, IS SUSTAINED.